OpenJurist

982 F2d 526 McGuire v. Co-I Gordon

982 F.2d 526

David MCGUIRE, Plaintiff Appellant,
v.
CO-I GORDON, Varner Unit, Arkansas Department of
Corrections; CO-I Thornton, Varner Unit, Arkansas Department
of Corrections; Captain Robinson, Varner Unit, Arkansas
Department of Corrections, Defendants Appellees.

No. 92-1733.

United States Court of Appeals,
Eighth Circuit.

Submitted: December 15, 1992.
Filed: December 29, 1992.

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.

Before JOHN R. GIBSON and WOLLMAN, Circuit Judges, and BATTEY,* District Judge.

PER CURIAM.

1

David McGuire appeals from a judgment entered against him on his 42 U.S.C. § 1983 (1981) claim, which alleged that unreasonable force was used to force him into a barracks at the Arkansas Department of Corrections. Following an evidentiary hearing conducted by a magistrate judge, the district court denied McGuire's claim. The court relied on the magistrate judge's findings that McGuire's refusal to obey a direct order and his physical resistance led to a security risk. The magistrate judge found that the corrections officer responded with only the force necessary under the circumstances, did not act maliciously or sadistically for the purpose of causing harm, and responded reasonably to the security risk posed by McGuire's physical resistance. The district court denied relief under Whitley v. Albers, 475 U.S. 312 (1986).

2

On appeal, McGuire argues that the magistrate judge's findings of fact, as adopted by the district judge, are clearly erroneous. We have reviewed the trial record and conclude that the findings are supported by the evidence and are not clearly erroneous. The judgment is affirmed. See Eighth Cir. R. 47B.

*

The Honorable Richard H. Battey, United States District Judge for the District of South Dakota, sitting by designation